Citation Nr: 0114418
Decision Date: 05/23/01 Archive Date: 05/30/01
DOCKET NO. 97-18 584 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Detroit, Michigan
THE ISSUE
Entitlement to an increased original rating for post-
traumatic stress disorder (PTSD), rated as 50 percent
disabling from April 10, 1996, until March 31, 2000, and
rated as 70 percent disabling since April 1, 2000.
REPRESENTATION
Veteran represented by: Vietnam Veterans of America
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
Heather J. Harter, Counsel
INTRODUCTION
The veteran served on active duty from October 1967 to April
1969.
In a January 2001 written statement, the veteran indicated
that he wanted "backpay" from the VA. Insofar as this
statement likely represents a claim for an earlier effective
date for a benefit which has been granted, this claim is
referred to the RO for appropriate action.
Subsequent to a hearing on appeal, held in March 2001 at the
RO, before the undersigned Member of the Board of Veterans'
Appeals (Board), the veteran submitted additional documentary
evidence in support of his claim. The evidence was
accompanied by a waiver of RO review. Therefore, the Board
will proceed to consider the appeal, based upon the entire
record, without delay.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appeal has been obtained.
2. Between April 10, 1996, and November 6, 1996, the
evidence of record reflects that the veteran's PTSD resulted
in considerable social and industrial impairment.
3. Between November 7, 1996, and December 31, 1997, the
evidence of record reflects that the veteran's PTSD was
manifested by occupational and social impairment with reduced
reliability and productivity and difficulty in establishing
and maintaining effective work and social relationships.
4. Between January 1, 1997, and October 31, 1998, the
evidence of record reflects that the veteran's PTSD was
manifested by occupational and social impairment, with
deficiencies in most areas, and the inability to establish
and maintain effective relationships.
5. As of November 1, 1998, the evidence of record reflects
that the veteran's PTSD was manifested by total occupational
and social impairment.
CONCLUSIONS OF LAW
1. A disability rating in excess of 50 percent is not
warranted between April 10, 1996, and November 6, 1996.
38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.132, Diagnostic
Code 9411 (1996).
2. A disability rating in excess of 50 percent is not
warranted between November 7, 1996, and December 31, 1997.
38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.130, Diagnostic
Code 9411 (2000).
3. A 70 percent disability rating for PTSD is warranted, as
of January 1, 1997. 38 U.S.C.A. § 1155 (West 1991);
38 C.F.R. § 4.130, Diagnostic Code 9411 (2000).
4. A 100 percent disability rating for PTSD is warranted, as
of November 1, 1998. 38 U.S.C.A. § 1155 (West 1991);
38 C.F.R. §§ 4.126(a), 4.130, Diagnostic Code 9411 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Service connection for PTSD was granted in February 1997 and
a 30 percent disability rating was assigned at that time.
The veteran filed a prompt disagreement as to the rating
assigned in April 1997. In December 1997, the RO increased
the rating to 50 percent, based upon additional medical
records received. In July 2000, the RO again increased the
disability rating assigned to PTSD to 70 percent, effective
as of February 2000, based upon evidence showing that the
veteran's level of functioning had decreased at that time. A
total disability rating based upon individual unemployability
has been in effect since April 2000. As these grants do not
represent a complete grant of the benefits sought on appeal,
the Board will consider whether a schedular rating in excess
of 70 percent is warranted. AB v. Brown, 6 Vet. App. 35
(1993).
The veteran contends that PTSD results in greater social and
industrial impairment than is reflected by the currently-
assigned 70 percent disability rating. In particular, he
asserts that his disability is so severe that it is
impossible for him to work with or for people, and impossible
for him to participate in social activities. He thus
requests that a 100 percent schedular rating be assigned.
Review of the evidence of record reflects that the veteran
has a long history of alcoholism post service. The veteran
filed a claim for service connection for PTSD in April 1996.
According to information from the Social Security
Administration (SSA) and from the veteran's VA application
for a total disability rating due to unemployability, he was
last employed in March 1994, and was last employed on a full-
time basis in March 1993. According to one report generated
for SSA, the veteran lost his last job as a counselor because
of PTSD symptoms including issues of trust and paranoia
inappropriate to the workplace. A VA medical report
indicates that the veteran was fired from his last job for
insubordination.
The medical evidence contained in the record reflects
numerous hospitalizations for the treatment of PTSD and
alcohol abuse complications between April 1996 and the
present. Additionally, the veteran receives outpatient
medical therapy and pharmacological therapy for the treatment
and control of PTSD symptoms. He consistently reports
symptoms of feeling trapped; having nightmares; feeling the
need to be totally alone; feeling uptight, angry, depressed,
and hopeless.
Disability evaluations are assigned to reflect levels of
current disability. The appropriate rating is determined by
the application of a schedule of ratings which is based on
average impairment of earning capacity. Separate diagnostic
codes identify the various disabilities. 38 U.S.C.A. § 1155
(West 1991); 38 C.F.R. Part 4 (2000). When there is a
question as to which of two evaluations shall be applied, the
higher evaluation will be assigned if the disability picture
more nearly approximates the criteria required for that
rating. Otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7.
Because the veteran has perfected an appeal as to the
assignment of the initial rating for PTSD following the
initial award of service connection for PTSD, the Board is
required to evaluate all the evidence of record reflecting
the period of time between the effective date of the initial
grant of service connection until the present. Fenderson v.
West, 12 Vet. App. 119 (1999). Thus, evidence reflecting the
veteran's condition between April 1996 and the present must
be evaluated.
Because the veteran's initial claim for a higher disability
rating was received in April 1997 in the form of a
disagreement with the original rating assigned, VA
regulations codified in 38 C.F.R. § 4.130, (61 Fed. Reg.
52695 (1996)) regarding the evaluation of neuropsychiatric
disabilities which became effective November 7, 1996, are
applicable to his claim for entitlement to an increased
rating for PTSD. However, the prior version of the
regulation must be applied to rate the veteran's disability
for any time prior to the effective date of the newer
regulations. 38 U.S.C.A. § 5110(g); VAOPGCPREC 3-2000 (April
10, 2000).
Prior to November 1996, governing regulation provided that
the severity of a psychiatric disability would be measured by
actual symptomatology , as it affects social and industrial
adaptability. 38 C.F.R. § 4.130 (1996). Therefore, for the
period between April 1997 and November 1996, the veteran's
PTSD must be rated under the criteria set forth at 38 C.F.R.
§ 4.132, Diagnostic Code 9411:
Ability to establish or maintain
effective or favorable relationships with
people is considerably impaired. By
reason of psychoneurotic symptoms the
reliability, flexibility, and efficiency
levels are so reduced as to result in
considerable industrial impairment.
[50 percent]
Ability to establish and maintain
effective or favorable relationships with
people is severely impaired. The
psychoneurotic symptoms are of such
severity and persistence that there is
severe impairment in the ability to
obtain or retain employment.
[70 percent]
The attitudes of all contacts except the
most intimate are so adversely affected
as to result in virtual isolation in the
community. Totally incapacitating
psychoneurotic symptoms bordering on
gross repudiation of reality with
disturbed thought or behavioral processes
associated with almost all daily
activities such a fantasy, confusion,
panic, and explosions of aggressive
energy resulting in profound retreat from
mature behavior. Demonstrably unable to
maintain or retain employment.
[100 percent] 38 C.F.R. § 4.132,
Diagnostic Code 9411 (1996).
The report of a VA hospitalization from April 1996 to June
1996 shows that the veteran had PTSD-related complaints of
insomnia and awakening with profuse perspiration, increased
anxiety, increased anger, olfactory hallucinations-- smelling
sulfur or burnt rubber or garbage that triggered PTSD
problems, decreased appetite with a ten pound weight loss in
the previous three months, minimal or no sex since November
1995, and decreased memory/forgetfulness. A GAF of 60 was
assigned at that time.
The report of an October 1996 VA examination, conducted in
conjunction with the veteran's claim for service connection
for PTSD, for the purpose of verifying the diagnosis of PTSD,
reflects that the veteran had a long history of excessive
alcohol indulgence to numb the feelings associated with his
Vietnam experiences. The report also reflects that he
suffered from Vietnam-related nightmares and flashbacks. The
manifestations of PTSD identified during this examination
included social withdrawal, and excessive suspiciousness of
others' motives. The examiner assigned a Global Assessment
of Functioning Score (GAF), reflecting his overall level of
functioning of 50.
These findings appear more analogous to considerable
impairment under the terms of the older rating criteria. The
veteran's symptoms of social withdrawal, excessive
suspiciousness, increased anxiety, and increased anger
parallel the description of reduced reliability, flexibility,
and efficiency levels set forth for a 50 percent disability
rating under 38 C.F.R. § 4.132 (1996). The assignment of GAF
scores of 50 and 60 lends support for a finding that the 50
percent rating is most appropriate to reflect the veteran's
level of functioning between April and November 1996. A
higher rating for this period of time would not be warranted
in the absence of evidence reflecting psychoneurotic symptoms
of such severity and persistence that there is severe
impairment in the ability to obtain or retain employment and
severe impairment in the ability to establish and maintain
effective or favorable relationships with people.
The newer regulations which became effective November 7,
1996, provide that PTSD, along with other anxiety disorders,
is rated under a "General Rating Formula for Mental
Disorders." 38 C.F.R. § 4.130, Diagnostic Code 9411:
Occupational and social impairment with
reduced reliability and productivity due
to such symptoms as: flattened affect;
circumstantial, circumlocutory, or
stereotyped speech; panic attacks more
than once a week; difficulty in
understanding complex commands;
impairment of short-and long-term memory
(e.g., retention of only highly learned
material, forgetting to complete tasks);
impaired judgment; impaired abstract
thinking; disturbances of motivation and
mood; difficulty in establishing and
maintaining effective work and social
relationships. [50 percent]
Occupational and social impairment, with
deficiencies in most areas, such as work,
school, family relations, judgment,
thinking, or mood, due to such symptoms
as: suicidal ideation; obsessional
rituals which interfere with routine
activities; speech intermittently
illogical, obscure, or irrelevant; near-
continuous panic or depression affecting
the ability to function independently,
appropriately, and effectively; impaired
impulse control (such as unprovoked
irritability with periods of violence);
spatial disorientation; neglect of
personal appearance and hygiene;
difficulty in adapting to stressful
circumstances (including work or a
worklike setting); inability to establish
and maintain effective relationships.
[70 percent]
Total occupational and social impairment,
due to such symptoms as: gross impairment
in thought processes or communication;
persistent delusions or hallucinations;
grossly inappropriate behavior;
persistent danger of hurting self or
others; intermittent inability to perform
activities of daily living (including
maintenance of minimal personal hygiene);
disorientation to time or place; memory
loss for names of close relatives, own
occupation, or own name. [100 percent]
In addition, other related regulations must be considered.
When evaluating a mental disorder, the rating agency shall
consider the frequency, severity, and duration of psychiatric
symptoms, the length of remissions, and the veteran's
capacity for adjustment during periods of remission. The
rating agency shall assign an evaluation based on all the
evidence of record that bears on occupational and social
impairment rather than solely on the examiner's assessment of
the level of disability at the moment of the examination.
38 C.F.R. § 4.126(a). However, when evaluating the level of
disability from a mental disorder, the rating agency will
consider the extent of social impairment, but shall not
assign an evaluation solely on the basis of social
impairment. 38 C.F.R. § 4.126(b).
The Social Security psychological assessment conducted in
January 1997 reflects that a specialist in rehabilitation
psychology deemed the veteran had PTSD symptoms of such
severity and persistence that there was severe impairment in
his ability to obtain or retain employment. She opined that
based upon all factors, involving his age, past work
experience, educational level, and his symptomatology from
PTSD, that he was unable to sustain work activity in any type
of setting due to his severe PTSD symptomatology and that he
was not employable. Specifically with regard to his PTSD
symptoms, she noted that even with the use of medication and
his abstinence from drugs and alcohol, his PTSD symptoms had
not improved but had in fact worsened.
Following a VA hospitalization from April 1997 to June 1997,
a GAF score of 49 was assigned. The psychologist who treated
him noted that it was clear that the veteran's PTSD symptoms
were chronic, may recur, and were likely to continue to
interfere with his attempts to make a satisfactory adjustment
outside of the hospital setting.
Following a review of the veteran's medical records and
claims file in August 1997, a VA examiner assigned a GAF
score of 50, and noted that his psychosocial and
environmental stressors included the activities of daily
living. The examiner noted that the veteran did not tolerate
being in crowds or being exposed to a large number of
persons, and that he had isolated himself from the other
veterans in the waiting room. The examiner also observed
that the veteran's speech and motor activity were slowed, and
that he was continually expressing depressive ideation. The
examiner rendered a diagnosis of PTSD, based on traumatic
Vietnam War experiences, nightmares referencing the same,
flashbacks, substance abuse, and impaired interpersonal
relationships.
The report of a VA hospitalization from December 1997 to
January 1998 reflects that the veteran had a restricted
affect and a dysphoric mood. He reported auditory
hallucinations related to flashbacks and that he occasionally
heard his name called. There was no evidence of psychosis,
however. His GAF at that time was reported to have been 40
upon his entrance into the hospital and 45 upon exit. It was
also noted that 45 was his highest GAF of the previous year.
Following a period of VA hospitalization from September 1998
to October 1998, the veteran's treating physicians assigned a
GAF of 45. His psychosocial and environmental stressors were
described as "severe." He had symptomatology including
nightmares, night sweats, flashbacks, sleep disturbance,
irritability and rage, thoughts of haring others, depression
, and episodic alcohol use. His mood was described as quite
depressed and his affect was noted to have been constricted.
The veteran was again hospitalized for a month's stay in
November 1998 for the treatment of PTSD problems. The GAF
assigned by his treating physicians upon discharge was 29. A
March 1999 VA hospitalization report reflects a GAF of 28.
In June 1999, he was again admitted to the VA hospital for
complaints of anger, irritability, and hostility, in addition
to sleeping problems and eating problems. The GAF assigned
during this hospitalization was 55.
The report of a VA hospitalization in February and March 2000
reflects that the veteran's mood was somewhat depressed, and
his affect was blunt. He reported that he had wanted to stab
a family member during a funeral meeting a few days prior to
his admission. His memory was described as grossly intact
and his speech was slurred but understandable. His treating
psychologist assigned a GAF of 28 and noted that although the
veteran was able to achieve some psychotherapeutic benefit
from the intensive trauma program, it was clear that his PTSD
symptoms are chronic and will continue to interfere with his
attempts to make a satisfactory adjustment outside of the
hospital setting. The psychologist predicted that his PTSD
symptoms are most likely to increase in both frequency and
severity during periods of increased stress, or at times when
he encounters stimuli which serve to remind him of traumatic
events.
During an April 2000 VA examination, the veteran reported
that he was married and lived with his wife, but that their
relationship was difficult due to his irritability, anger
without adequate cause, lethargy, and his dislike of doing
anything socially. The veteran described depression,
disillusionment, unhappiness, lack of sleep, disinterest in
life activities, lack of sexual desire, and lack of desire to
cling to hope. His speech was described as rambling, jumping
from one topic to another. His memory and concentration were
described as poor. The examiner rendered a diagnosis of PTSD
based upon traumatic Vietnam War experiences, nightmares
referencing the same, a sad/depressed mood, poor temper
control, flashbacks, impaired concentration and memory, and
social withdrawal. A GAF of 40 was assigned.
During an April 2000 social work survey, the veteran reported
having experienced more intense episodes of PTSD over the
previous year and stated he had bouts with anger and
aggression when he was out in public. The social worker
assessed that the veteran continues to suffer from PTSD and
nervousness around other people.
The report of a January 2001 VA hospitalization reflects that
the veteran was admitted for treatment of PTSD symptoms. The
treating physician noted that there had been no significant
change in his PTSD symptomatology from the many previous
admissions. A GAF of 29 was assigned.
In reviewing the medical evidence reflecting the veteran's
mental condition between November 1996 and the present, a
general downward trend becomes apparent, as worsening of his
symptomatology is reflected in the records contained in his
claims file. Applying applicable regulatory criteria and
following a thorough review of the record, including the
veteran's own contentions, VA outpatient treatment reports,
VA hospitalization reports, VA examination reports, and the
medical evidence provided by the Social Security
Administration, the Board finds that a 70 percent disability
rating best reflects the veteran's level of disability
resulting from PTSD from January 1997 to October 1998, and
that a 100 percent schedular disability rating best reflects
the level of disability resulting from PTSD subsequent to
November 1998.
Prior to the report of the January 1997 SSA evaluation, the
medical evidence reflected occupational and social impairment
which is most analogous to the criteria set forth reflecting
the 50 percent disability rating. At that point, it appears
he was only beginning to address his deeply-rooted PTSD
problems, and he had PTSD-related complaints of
forgetfulness, insomnia, nightmares, and social withdrawal.
Physicians assigned GAF scores of 60 and 50 to quantify his
level of overall functioning during this time frame. The
description of these symptoms as reflected in the hospital
reports, outpatient treatment reports, and the October 1996
VA examination would thus appear to reflect reduced
reliability and productivity due to symptoms such as
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of
short-and long-term memory (e.g., retention of only highly
learned material, forgetting to complete tasks); impaired
judgment; impaired abstract thinking; and disturbances of
motivation and mood; indicative of difficulty in establishing
and maintaining effective work and social relationships,
rather than the inability to establish and maintain effective
relationships, as is required for the assignment of a
70 percent disability rating.
The report of the January 1997 psychological evaluation,
however, reflects that the veteran's PTSD symptoms had
worsened, even though he was abstaining from drugs and
alcohol and was complaint with medication therapy. During
the time frame between January 1997 and October 1998, the
veteran was hospitalized numerous times for PTSD
symptomatology, was highly medicated, and attended group and
individual therapy. Despite these measures to treat and
control his PTSD symptomatology, the disease apparently
worsened. His physicians assessed his overall level of
functioning as between 40 and 50 during this period of time.
It appears that he withdrew further from society, isolating
himself from other veterans even in the waiting room of the
VA medical center in August 1997. In this context, the
symptomatology reported in detail above would seem to be more
analogous to the criteria required for the assignment of a
70 percent disability rating under the governing regulation,
reflecting occupational and social impairment with
deficiencies in most areas and the inability to establish and
maintain effective relationships. Review of the veteran's
symptoms as set forth above, include manifestations such as
suicidal ideation, near-continuous panic or depression
affecting his ability to function independently,
appropriately, and effectively. The veteran's clinical
picture between January 1997 and October 1998 also includes
problems such as impaired impulse control and difficulty
adapting to stressful circumstances.
The report of the November 1998 hospitalization reflects the
initial assignment of a GAF score below 30, demonstrating a
continued slide in his overall level of functioning and
coping. With the exception of a GAF score of 55 in June 1999
and a score of 40 in April 2000, every GAF score assigned
subsequent to October 1998 is below 30. In this case, in
accordance with the provisions of 38 C.F.R. § 4.126(a), the
Board chooses to place greater emphasis upon the medical
evidence generated during the veteran's numerous
hospitalizations than upon the report of a single VA
examination, as his treating physicians would likely be able
to form a better impression of his overall impairment over a
greater period of time. The veteran's own report during the
April 2000 social work survey that his episodes of PTSD had
become more intense over the previous year lend support to
the conclusion that a 100 percent schedular rating is
warranted. Additionally, his hearing testimony to the effect
that he feels totally isolated, he cannot sleep more than two
or three hours a night, and that his memory is deteriorating,
buttresses the conclusion that his PTSD-related impairment is
more analogous to the total occupational and social
impairment required under the governing criteria for a
100 percent rating.
Thus, the Board concludes that the evidence supports a grant
of a 70 percent disability rating for PTSD from January 1997
to October 1998, and that the evidence supports a grant of a
100 percent schedular disability rating for PTSD subsequent
to November 1998. The preponderance of the evidence is
against a grant in excess of 50 percent between April 1996
and December 1996. The preponderance of the evidence is also
against a grant in excess of 70 percent from January 1997 to
October 1998.
In reaching this determination, the Board has given due
consideration to the provisions of the recently-passed
Veterans Claims Assistance Act of 2000 [Pub. L. No. 106-475,
114 Stat. 2096 (2000)], as those provisions impact upon the
adjudication of the veteran's current claim. However,
following a thorough review of the record, the Board is
satisfied that the VA has met its duty to assist the veteran
in the development of all facts pertinent to his claim. This
is to say that the VA has made all reasonable efforts to
assist the veteran in obtaining evidence necessary to
substantiate his claim, including the scheduling of VA
examinations and providing him with two hearings on appeal.
Under such circumstances, no further assistance to the
veteran is required in order to comply with the VA's duty to
assist him mandated by the aforementioned legislation.
ORDER
A 70 percent disability rating for PTSD is granted, effective
January 1, 1997, subject to the laws and regulations
governing the award of monetary benefits.
A 100 percent disability rating for PTSD is granted,
effective November 1, 1998, subject to the laws and
regulations governing the award of monetary benefits.
Robert E. Sullivan
Member, Board of Veterans' Appeals
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